There is no question that justice delayed is justice denied, because the longer cases drag on in the court system, the longer the parties suffer—struggling with the uncertainty and the unknown, reluctant to move forward. Individuals, businesses, not-for-profit groups, government departments or ministries, waiting for trials or final decisions. Those delays have a ripple effect on the whole justice system and in every entire community.
Cases like the older man claiming age discrimination because he was fired from his job and can’t find a new job. A desperate mother, trying to feed her children, leaving them 12 hours a day, waiting for child support payments to be awarded. Businesses and corporations, big and small, trying to figure out how many people to hire when they could lose business because of a possible unfavorable court decision. A bank customer sued because he fell behind on a loan, when his hours were cut during a recession. A popular rap group, waiting for the judge to determine if it copied or stole the lyrics to a hit song. A lawsuit brought by women suing their employer because they received less pay than men for the same work. Or banks raising interest rates, in part, because of the high default loan rate and the years it takes to get a court judgment.
Long delays affect not only the parties, trying to hold on, but large international investors and companies who must have faith and trust that the justice system will resolve disputes fairly, efficiently, and in a cost-effective way.
At all levels, the effects of uncertainty of when and how the court will rule are felt. What about government agencies and ministries, who daily struggle with political and policy decisions around pension benefits? Or a community suing because the air is polluted by chemicals coming from a plant in their neighborhood and people are getting sick? Long delays deeply affect everyone, not just financially, because litigating a case costs so much money, lawyers are expensive, and the emotional anguish can even be greater.
Believing that justice delayed is justice denied and committed to making the system work better for everyone, during my first year on the bench in the United States, I brought in every civil case assigned to me that was on track to be decided by a jury of citizens, met with the parties, and tried to mediate or settle the case. Those that I would be deciding without a jury if there was no agreement, I sent to other judges so they could try to mediate.
So often, particularly in the older cases, when a settlement was reached the parties said, “Why didn’t we try to do this earlier?” Or “Why did we wait until the trial date was set to seriously meet with the other side to resolve the dispute? We have spent so much time, and money, and the uncertainty has been so difficult to live with. Why didn’t a judge or the court system give us the option of mediation early on?”
The reason mediation works and can be so effective is that the parties sit down with a well-trained mediator who is neutral, who does not pick sides, and who listens to each party, and who then helps them come up with a solution they can both live with. Because in mediation, no one is declared a winner, and each side gets to put together a resolution that works for each side. And once the agreement is reached, it is filed with court and is binding on each side.
During my early years on the bench, as I was trying to settle cases, mediation in United States courts was not popular or viewed as a beneficial alternative to getting a judgment from the court. It was just catching on. And there were few judges and magistrates, like me, who were true believers in mediation.
But things changed, following a continuing uproar by multiple court users complaining of the long delays in civil cases. In 1990, Congress passed the Civil Justice Reform Act sponsored by then-Senator Joseph Biden which required the 94 federal trial courts, spread across 50 states, to design and begin to implement an alternative dispute resolution system to quickly, and fairly, resolve cases. At that time, as Chair of the Court Administration and Case Management Committee, appointed by Chief Justice William Rehnquist, I reviewed with my committee members each report and made recommendations. Even though judges initially objected to creating plans, eventually most realized the tremendous convening power of court-annexed mediation programs over trials or arbitration plans. Arbitration costs more, requires multiple arbitrators, and is just like a trial, except the time to reach a decision can be shorter.
Courts that were reluctant to put their plans into action were forced to create effective ADR programs when in 1998 Congress passed the Alternative Dispute Resolution Act and said:
(1) alternative dispute resolution, when supported by the bench and bar, . . . has the potential to provide a variety of benefits, including greater satisfaction of the parties, innovative methods of resolving disputes, and greater efficiency in achieving settlements;
(2) certain forms of alternative dispute resolution, including mediation, . . . may have potential to reduce the large backlog of cases now pending in some Federal courts throughout the United States, thereby allowing the courts to process their remaining cases more efficiently.
U.S. Alternative Dispute Resolution Act of 1998, § 2.
Although there was skepticism by many lawyers and judges early on, now in the United States we can’t imagine our courts without it. In the Chicago area, courts have reported up to 50-65% settlement of cases mediated in our court-annexed system. Even with the digital age, electronic filing systems, and streamlined court procedures in the United States, most judges can’t keep up with the tremendous workload because so many cases are filed.
Shortly before I became a federal appeals court judge in 1999, again a lifetime appointment by the U.S. president, we began a pilot mediation program at the appeals court. Mandatory mediation happened once the court or jury had ruled in favor of a party. We started the appellate mediation program with one court-employed mediation lawyer. Now there are three, and about 40% of cases settle even after the appeal has been filed.
So why am I a member of the Stakeholders Working Group that is sponsoring the April 13-14 2023 Banking Mediation Summit in Kenya? I began my love affair with the African continent when my mother talked and dreamed about coming home to the Motherland. So, when I had the opportunity to come in 2001 to Ghana to partner and work with its judiciary, I leaped at the chance. Over the last 22 years I have traveled to nine African countries—Ghana, Kenya, Liberia, Namibia, Nigeria, Rwanda, Tanzania, Uganda, and Zambia—and collaborated and done training with judiciaries, prosecutors, defense attorneys, NGOs including Lawyers Without Borders, the National Institute of Trial Advocacy (NITA), and the Weinstein International Foundation, and the U.S. Departments of Justice and State. Now, since my retirement from the bench, I am able to devote myself full time to developing and supporting Rule of Law projects in Africa, and nothing is more important to me than helping to further develop a legal culture that embraces mediation.
After working in so many countries that are making great progress in delivering justice, I realize that, just like the United States, no matter how efficient the courts are, the volume of cases filed is overwhelming and backlog continues. In my experience, mediation can go a long way toward unclogging the courts.
Here in Kenya court-annexed mediation has been picking up steam and has seen dramatic results already with a settlement rate of over 50% after mediation of smaller cases. Now all the critical stakeholders in banking-related lawsuits—the Judiciary including the Chief Justice, Central Bank of Kenya including the Governor, Kenya Judiciary Academy, Law Society of Kenya, Law Society of Kenya-Nairobi Branch, Kenya Bankers Association, and Strathmore University Dispute Resolution Centre are joining together, and want to see mediation entrenched in the court system. Each has made a commitment to trainings which will be held over the next six months. More than 1,200 banking-related cases have already been identified for a banking mediation month, which will take place in the last quarter of the year 2023.
I have traveled more than 20 times to Kenya, which has become my second home—to Nairobi and Nakuru; to Mombasa, Malindi, the Masai Mara, and Mount Kenya; from Kisumu in the west to Lamu in the east, and to many places in between. I see Kenya on a much faster trajectory to embracing mediation than the United States. Kenyan courts and stakeholders are using mediation voluntarily and didn’t have to wait for Parliament to act like we did. That’s why I am so excited about the Mediation Summit in April and am so thrilled that the judiciary and the banking community are, as the Summit title reflects, “Leading the Way” on mediation in Kenya.
Hon. Ann Claire Williams (Ret.) is a former federal district court trial judge and appellate judge in the United States and is now at the law firm of Jones Day. The views and opinions set forth herein are the personal views or opinions of the author; they do not necessarily reflect views or opinions of the law firm with which they are associated.